March 02, 2010

By Jennifer Cassel

On March 29, 2010, EPA formally announced that it had reconsidered its interpretation of the term “subject to regulation” under the Clean Air Act (“CAA”), and as a result, will delay the effective date of greenhouse gas (“GHG”) emissions requirements for stationary sources until at least January 2, 2011.  75 Fed. Reg. 17004.  The announcement stems from EPA’s February 2009 agreement to reconsider the December 2008 “Johnson memorandum,” in which memo former EPA Administrator Stephen Johnson interpreted the terms “subject to regulation” under the CAA to include only those air pollutants for which the CAA requires actual control of emissions.  EPA has decided to maintain that interpretation, refining it only to clarify that GHG emission requirements for stationary sources under the Prevention of Signification Deterioration (“PSD”) program “will not apply to a newly regulated pollutant until a regulatory requirement to control emissions of that pollutant ‘takes effect.’”  Because GHG emissions limits for vehicles will not take effect until at least January 2, 2011, EPA explains, the PSD requirements will not take effect until that time.  EPA published notice of its announcement in the April 2, 2010 Federal Register.   

The Federal Register notice is available at